Fowler, Alan (2003) An enabling environment for civil society: What does it mean and how does law fit in?. Centre for Civil Society Research Report 7: 1-14.

Summary

Abstract

This paper explores the notion of an ‘enabling environment’ for civil society, a concept that is briefly reviewed. After examining the limitations involved, it adopts a broad, practical view of the legal dimensions that co-determine the operational context for civil society by, first, asking the question: ‘an enabling environment for what?’ Answers are found in terms of civic existence, expression and engagement – 3Es. Analysis of the 3Es produces five critical outcome domains – Association, Resources, Voice, Information and Negotiation (ARVIN) – that are significantly affected by legislation. For each domain, a set of ideal legal conditions is described and sample questions are posed that would help assess the degree of legal conformity with what is needed for a vibrant and effective civil society.

1. INTRODUCTIONThe associational life of citizens carries many labels. In common use are: the Third or Voluntary Sector, non-governmental organisations, non-profit organisations, social movements and civil society. Irrespective the labelling, civic assertiveness – that is the energy and force of ordinary people acting together in the public arena - has caught the attention of politicians, public administrators, journalists and the business community. Moreover, widening exposure through the mass media and growing access to modern communications technologies have stimulated people’s power and potential to affect society and their effectiveness in doing so when individual efforts are combined. One could talk of a reawakening or ‘re-discovery‘ of the rights, roles, responsibilities and capabilities of citizens acting collectively as agents of change and as the foundation, guardians and instrument of accountable governance and corporate responsibility, nested and connected from local to global levels.

Interest in civic life is a relatively recent phenomenon. Commentators attribute the re-emergence of civil society as a concept, a research terrain and a political actor to the implosion of the Soviet Union. Analysts argue that this unexpected event was the result, inter alia, of discontented citizen’s acting in non-violent ways to change a regime type that simply was not working well enough. The political superstructure was an oppressive shell covering an untenable economic system. Whether accurate or not, introducing the concept of civil society as a protagonist in this historic event captured the imagination of both the political right and, to a more complicated extent, by the ideological left.

The former interpreted civil society’s success in terms of a Liberal, de Toquevillian perspective of gaining liberty associated with assertion towards and containment of state power. Informed by Marxist and Gramscian perspectives, the left were more sceptical about civil society as a force for political reform and questioned the way in which the concept was being used and abused. Nevertheless, the concept of civil society remains part of a search for a new left ideology, more deeply informed by the notion of a struggle for individual and collective rights and the use of government for promoting the common good.

Currently, dominant discourse favours a Liberal perspective on what civil society is, why it exists and what it does. It readily assumes a positive outcome, ‘harmony’ model of the action of civil society and its relations with institutions of the state and market, a position that is itself the subject of revisionism. But, recent events attributed to ‘terrorism’, ‘fundamentalisms’ of various types and transnational civic action to influence global governance, for example at the World Trade Organisation, reaffirm a perspective of civil society as a terrain of struggle within society as well as being in contention with the practices and power of states and markets. To some extent, therefore, the search for civil society is ongoing.

For our purposes it is sufficient to define civil society as an institutional arena between family and state “…where the private becomes public and the social becomes political”. Civil society organisations (CSOs) are a broad category that covers all forms and non-profit distributing purposes of civic associational life, that are freely constructed and governed by citizens themselves. Their intentions are as diverse as human imagination and shared interests can conjure up. This definition, however, does not make explicit the view that all civic life is political in the sense of making a claim on public space even if a CSO’s purpose does not have an expressed political intent. This broad interpretation rests on the political nature of asserting the right to freedom of association discussed below.

While recognising the importance of other factors and forces that shape operating conditions, the primary function of this paper is to focus attention on the legal dimensions of an enabling environment for CSOs by first asking “an enabling environment for what?” Only when this question has been answered, in section 3, is it possible to explore, in section 4, how law can work for or against ‘enabling’, i.e., creating part of the context for a vibrant CSO community. Further, answers to the foregoing question allow identification of five domains that point to what ideal legal conditions would be as well as enabling an assessment of the situation under which CSOs operate. However, before embarking on this discussion, it is important to signal major reservations in adopting a predominantly or exclusively ‘legal’ view of what an ‘enabling environment’ is all about.

2.LIMITATIONS OF A LEGAL APPROACHMany factors determine the environment that CSOs face and co-create. Socio-cultural characteristics, political system, economic structures and wealth distribution, institutional divisions of labour, beliefs and values, and historically embedded conventions and norms, all shape CSO configurations and civic life.

Many, but far from all of these and other features, are encoded into statutes that a government has the right and obligation to comply with and to enforce. In other words, here is a limit to the extent in which laws and statutes alone can act as the way to fully define the environment for, or the boundaries of, a civic arena. Nor can legal conditions solely determine behaviours and relationships within the CSO community or regulate transactions across its borders.

A first limitation is that there are times and conditions where it is the interest of citizens not to seek legal recognition because, for example, legislation is purposefully overly restrictive to protect the interest of a few, or its interpretation is open to political manipulation and abuse. This condition is a common product of unaccountable, corrupt, rapacious or repressive regimes, which often exhibit a tight bond between business and politics. In other words, the institutional framework within which law is created and applied does not necessarily ensure due, equal and fair process. Not does it give self-evident grounds for citizens to trust power holders. Under such circumstances it can make sense – especially for the weak and dis-empowered -- to stay informal and associate ‘underneath’ the law until conditions improve. This is, in fact, the operating condition for many associations established by poor people across the world to ‘get by’ and ‘get ahead’.

Moreover, as shown by a recent study in South Africa, even under generally supportive constitutional and political conditions, associational life is often informal in terms of not seeking public recognition by establishing as a legal entity. There is no a priori reason for CSOs to seek a formal status. Formalisation is only worthwhile when the benefits make this desirable in terms of better achieving a shared purpose, or if sanctions will result from not doing so. Serious errors in social policy and governance reform can result from not appreciating the significance of informal ways in which people collaborate for individual, collective and public benefit.

A further limitation is an assumption that law can ‘reverse engineer’ social behaviour and create, for example, trusted relationships between civic groups, adherence to public norms and respect for other types of institutions, such as governments and businesses. This outcome could possibly occur if the society in question has a strong legal culture with a reasonable public understanding of and sufficient debate about legislation. Compliance and respect is less likely where the law does not reflect adequate legislative preparation involving public processes and (dis)agreement. It also less likely where legal conditions are less important in people’s lives than tradition, conventions and norms for regulating relationships and transactions. This latter point is stressed in aWorld Bank study, Voices of the Poor.

‘Poor people’s interactions with landlords, traders, moneylenders, state officials, local council members, local elite, politicians – and women’s encounters within the household with husbands, mothers-in-law, other relatives, other women, traders, financiers, police, educators and employers – are not governed primarily by laws of the land, but by the social norms that dictate who has what value in each transaction. These pervasive and interconnected norms hold the whole edifice of society and governance in place.’

In other words, CSO boundaries of primary concern to and beyond poor people are the product of convention and custom as much as legal regulation. This reality creates operational difficulties for governments and inter-governmental institutions that seek to promote legal reforms to improve the CSO context.

Another drawback stems from the way that law is intended both to reflect and control public policy. Laws often set a guiding framework of rights, obligations and procedures. It is the definition, interpretation and application of law into public policy and government practice that can create enormous leeway and gaps between the letter and spirit of what is intended. Consequently, statute law as written may be too crude a measure for understanding what is enabling or not in terms of the codification of civic associational life. More often than not, it is the translation of law into myriad self-determined bureaucratic preferences, institutional self-interests, operational requirements and potential for redress, which determine the on-the-ground reality of what ‘the environment’ actually means for CSOs. Law as a framework can have many discretionary pathways to its affects that may require even more detailed attention than the law itself.

In sum, law, in its broadest sense, should always be within the purview of an enabling environment for CSOs. But championing changes in the law needs to be undertaken with care. Proposals in such a direction must be assessed in terms of specific institutional pre-conditions – for example, the type of political regime and the state of judicial independence, accessibility and efficiency – that produce the most likely, as opposed to the most desired, application and affects of laws on the enabling conditions discussed below.

In all cases, legal reform should not be over-emphasised at the cost of attention to the actual norms and real ‘rules of the game’ by which, citizens, and especially poor or otherwise disadvantaged people, choose to collaborate in order to live their lives.

3. AN ENABLING ENVIRONMENT FOR WHAT?Before it is possible to discuss what contribution the law can make to an enabling CSO environment, it is necessary to be clear about what exactly has to be ‘enabled’? In my view, there is a reasonably straightforward answer to this question. What needs to be enabled are: CSO Existence, CSO Expression and CSO Engagement – the 3Es of a vibrant civil society. It is necessary to briefly explain each one in turn.

CSO ExistenceA common-sense precondition for a CSO sector – vibrant or otherwise - is the presence of CSOs, be they informal or formal in nature. Typically the law sets the conditions and thresholds that must be satisfied in order for a CSO to formally exist. But informing law are two factors that often lie in tension with each other. The first is a supposedly universal set of individual rights enshrined in international conventions and a country’s constitution. Second is the ideology informing political power holders, allied to their degree of legitimacy, the mandate they enjoy and the effectiveness with which they are held accountable. These characteristics typically determine the amount of ‘civic space’ power holders feel comfortable with in terms of CSO forms and purposes. Moreover, and more deeply, the nature of associational space is conditioned by the history and prevalence of belief systems that establish norms about acceptable behaviour, the ‘proper’ division of labour and responsibility between states and citizens and the conditions under which governments can exact compliance and how. Put another way, each CSO environment is a reflection of distinct processes and trajectories.

Together, a concept of inalienable rights and regime ‘comfort’ set a foundational framework within which citizens can get together and act. And, together, they are historically conditioned in that all societies evolve in ways that set limits to legitimate, that is socio-politically recognised and condoned, CSO purposes. For example, incitement to violence against other groups is typically prohibited everywhere. Consequently, legal choices and how they are applied to CSOs can be seen as situation-specific reconciliations of the tensions between personal freedom and the public good. Indeed, one significant function of political processes is to define what is public and what is private, what is individual and what is collective.

Consequently, an abiding critical issue for CSO existence are processes by which citizens themselves control what is defined as public and private space and influence the oversight and control exercised by public bodies on their behalf. Democratic politics is intended to ensure that citizens have a significant say in setting associational boundaries, purposes and thresholds for collective action. Other political systems - such as theocracies and dictatorships – adhere to other, usually less, participatory principles.

Finally, a significant threshold to CSO existence is that of information. Specifically required is an environmental condition that enables individuals to know about and communicate with those of a similar disposition who are prepared to collaborate to achieve a shared aim. The broader and more diverse the sources and channels of information, the greater the prospect of such mutual identification and necessary communication. It is here where literacy and the mass media play essential enabling roles that are affected by rights in terms of access to education and of legal conditions in terms of media ownership, broadcast licensing, censorship and regime transparency.

CSO ExpressionA significant element of the institutional logic of CSOs is to enact human potential in all its diverse forms and meanings. There is no theoretical limit to what human imagination can conjure up in terms of what this represents in practice. However, and notwithstanding the type of shared purpose, once the associational threshold is crossed, the immediate task is to gain the capabilities required to collectively act, that is to say, for the CSO to express itself, principally by achieving the purpose(s) for which it was established.

In informal CSO life, a basic capability resource is the availability of voluntary human commitment, time and effort. A more common resource required by formally registered associations is money. Put another way, the ability of CSOs to express themselves in terms of achieving their self-selected purposes is co-determined by the material base and resources they generate, access and control. Legal conditions can affect all of these.

Voluntary effort requires the availability of time. This resource varies enormously across individuals and groups. For example, for people in formal employment, the law can set limits to the amount of hours that may be worked, so determining the time available for personal endeavours. Law can also encourage voluntarism by providing incentives for businesses to ‘release’ employees to undertake voluntary work of public benefit. For those involved in informal economic activity, laws can influence (transaction) costs in terms of the time needed to earn a livelihood, for example by (burdensome) regulatory procedures that influence opportunities, places and the time required for marketing products and services.

For informal associations, in addition to voluntary effort, expression may rely on the ability of members to make financial contributions. This ability is determined by levels of disposable income – or contributions in kind – available to members and the proportion this constitutes in terms of livelihood structure. Further, levels of personal taxation impact on what financial self-mobilisation is possible. As a result, resources to act are usually highly unevenly distributed across social groups and economic classes. Typically, unevenness favours the already better placed in terms of pursuit of shared interests that may or may not be ameliorated by redistributive measures as a public policy.

For formally operated CSOs that rely on paid staff, the time constraint is overlaid by the need to mobilise financial resources. Here laws shape the ‘gift economy’ through (dis)incentives when fundraising from donations made by third parties and by self-generation. Common incentives are tax breaks for those making donations, CSO exemption from taxes (such as Value Added Tax) on transactions and services, or on incomes derived from economic activity.

In all cases, the challenge is to gain access to economic surpluses and control their use. Again, and typically within a non-distribution constraint not applied to commercial enterprise, laws can prescribe acceptable uses of funds mobilised by CSOs as well as encourage or direct their application to desired public ends and benefits. Laws can also define CSO rights to access public resources from government budgets and give incentives to corporations to support socially responsible civic endeavours.

In sum, there are many aspects of law that condition the capacity of CSOs to express themselves. A typical concentration on favourable tax regimes is but one of many facets of law that (dis)enable CSO vibrancy and viability.

CSO EngagementThe ability of CSOs to express themselves is a necessary condition to fulfil the third dimension of an answer to the question of ‘an enabling environment for what?’ In this case, the requirement is for rules of the game and recognised ways for CSOs to negotiate with each other and with the other major institutions of society that operate on the basis of a different internal logic. For states, the institutional logic is one of rationalisation and regulation of human activity by legal and bureaucratic hierarchies and enforcement, while that of corporate capitalism is accumulation and commodification of human economic effort. CSO interfacing with these other logics – what is acceptable and how – is determined by many factors, such as conventions, popular mobilisation, public places and norms for consultation and contestation, with law acting as a significant mechanism for encoding the rights, obligations, rules and processes involved.

Of particular interest in CSO engagement is that of participation in and popular control over the way society and human activity is directed and managed. Here a vital contribution of law is to define the rights and processes that ensure adequate and equitable access, participation and influence across the spectrum of groups and (political) interests that CSOs contain and/or represent as subsets of the total polity.

Further, associated with a perceived decrease in government authority in favour of corporations, a more recent drive for CSO engagement is towards businesses. Typically such engagement is in terms of exerting pressure on businesses in terms of ‘civic compliance’ that fosters environmental and/or socially responsible behaviour. Legal conditions can foster or impede the foundations upon which such pressure and cross-sector negotiations are transacted and enforced.

ObservationsThe above sketch, suggests ‘enabling stages’ towards attaining a vibrant CSO sector. In practice, in countries across the world the CSO ‘sector’ can seldom be located at one or other point of progression. The reality is more subtle and complex. For example, typically CSOs dedicated to welfare provision and supplementing state services are better tolerated and encouraged than those established to contest policy or influence and monitor governance. Hence, in any given country some types of CSOs may enjoy a relatively enabling environment, while other types are seriously controlled if not actively repressed.

A direct implication is to disaggregate the notion of a CSO enabling environment to, at least, the level of major clusters of CSO purposes. This is a way of posing an important complement to the ‘enabling for what’ question by asking ‘enabling for who’ in terms of CSO types and interests. Within this perspective, as a desired end state, ‘vibrancy’ would imply that a significantly diverse array of CSO types and purposes are enjoying similar environmental conditions.

A merit of a 3E analysis is that it creates an institutionally-oriented framework that gives ‘enabling’ a tangible meaning and, hence, criteria for assessment of legal conditions. Drawing on the foregoing discussion, the next section distils what an enabling legal environment would look like and offers an approach to its assessment.

4. LEGAL ARRANGEMENTS AND CONDITIONS FOR A VIBRANT NONPROFIT SECTOR“Law, by its nature, is exceedingly complex, and seemingly innocuous phrases can have immense special meaning. What is more, legal provisions affecting nonprofit organisations can be scattered widely throughout national legal systems, and it is quite possible that seemingly encouraging provisions in one body of law can be countermanded by restrictive provisions in another. Anyone seeking to analyze the impact of law on the development of particular social and economic structures must therefore proceed with great care”.

The preceding quotation complements the cautionary point made in section 2. In addition to the caveats of taking an overly legalistic view, it is important to recognise that laws affecting CSOs are a distributed phenomenon. They are spread across the statutory landscape and are not necessarily in coherence with each other in terms of enabling or constraining the CSO environment. Consequently, rather than defining the preferred content of individual laws, a more integrated perspective is to determine what their combined or interactive impact should be on CSOs. A way of doing so is to frame the issue in terms of preferred, or ideal, legal outcomes rather than intentions. This task can be aided by using the previous analysis to determine relevant, major domains for CSO vibrancy across which laws are distributed. This is the purpose of the next section.

Environmental Domains and Ideal Legal ConditionsAnalysis of section 3 points towards five outcome domains of significance to CSOs that have legal dimensions, as well as other elements that are not considered in this paper. An ‘ideal’ set of legal conditions can be proposed for each one. It is then possible to pose questions that permit an integrated assessment of the legal situation from the perspective of CSOs themselves.

This is advantageous because in each domain, despite their individual intentions, ‘distributed’ law and the policies they embody and spawn have cumulative intended and unanticipated affects that establish CSO environmental conditions in real life. Put another way, this approach allows the impacts of diverse laws to be clustered and evaluated in terms of their combined ‘environmental impact’ on CSOs. The five domains, with the acronym ARVIN, are:

The following paragraphs systematically analyse law in terms of the ideal conditions it should create in terms of energetic CSO behaviour and poses illustrative questions that can help assess the situation in practice.

AssociationIdeal legal conditions for a vibrant associational life embodied by CSOs should have the following characteristics.

1.Guarantee freedom of association of all citizens for all civic purposes at all socio-political levels, limited only by the constraint of not doing harm to others. There should be no room for ambiguity, allied to highly circumscribed bureaucratic discretion with a right of legal challenge. 2.Ensure coherence in legal provisions affecting CSO creation with minimum (cost and procedural) thresholds required to do so.3.Place no restrictions on CSOs’ initiatives to expand, improve and strengthen themselves.

Useful questions for assessment would be: is peoples’ associational life spontaneous and free both formally and informally, or is it highly circumscribed and typically subject to political and security vetting or strong social control? How are CSOs distributed over different social groups and purposes? Are certain groups excluded or under represented? Are second and third order levels of CSOs to be found? What are reasons for associational restraint: lack of political tolerance and space, legal restrictions, administrative obstacles, costs, social norms? Who holds power over limiting conditions and why?

1.Recognise and encourage socially responsible collective action.2.Fiscally encourage CSOs to develop economic foundations for self-sustainability with autonomy, where requirements for public accountability and transparency are no more arduous than demanded of corporate entities and the state itself.3.Fiscally encourage individual and corporate giving.4.Fiscally encourage CSO roles that produce public benefits.5.Provide exemptions that reduce CSO internal operation and transaction costs. 6.Prevent state interference with financial transfers between citizens and CSOs for all legal civic purposes.

Assessment questions would be: Do people have the time, energy, materials, assets, financial surplus and mobilisation skills required to make CSOs viable with continuous creation of benefits? How reliant are CSOs on discretionary external -- as opposed to self-generated and controlled -- resources to continue to function? How autonomous is their resource base from government? How does compliance with taxation, employment and social security laws affect CSO income and cost structures? What is the primary constraint: legal restrictions, lack of economic potential or disposable surplus, no cultural pre-disposition towards private philanthropy, inadequate financial infrastructure?

VoiceRelated to and linking the elements of civic expression and engagement is the domain of ‘voice’. In other words, the legal situation that enables CSOs not just to speak but also to be heard by others, particularly other CSOs, political organisations, government department and agencies and corporations. Allied to and a precondition for negotiation discussed below, ideal legal conditions for voice would:

1.Guarantee and provide for freedom of expression.2.Ensure right of access to and use of public media.3.Ensure the right to participation in processes affecting public policy and the public arena.

To assess this domain, one might ask: are any groups or ideas blocked from expression and if so on what grounds? Are all CSOs that wish to do so able to articulate their positions and ideas in the public realm? Are any groups excluded from participating in the public arena? Is public media open to projecting a diversity of expression? Is CSO voice factored-in to processes and locations for public decision-making? What is limiting a capability for voice? What is causing exclusion from certain voices to be recognised and heard?

Information and communicationAside from important social and infrastructure conditions - such as literacy and low cost communications systems - legal conditions that have a bearing on the generation and exchange of information should:

1.Ensure open, timely and adequate access to information affecting the public domain.2.Prevent monopoly in sources and channels for generating and disseminating information, particularly by means of mass communication.3.Prevent restriction on the generation and dissemination of information about CSO activities, ideas and opinions.4.Enable unrestricted (physical) communications between people.5.Place no restrictions on CSOs interacting with each other and with the general public.

When undertaking assessment, answers should be sought that indicate whether access to information, particularly about the public domain, is accessible, plentiful and suitable for non-literate as well as literate users, or is information inaccessible, censored and controlled? How important is education for access? What is the major constraint? Government disclosure, or media density, variety or monopoly ownership?

In addition, is communication easy, free, intense and low cost or difficult, restricted, and expensive? How wide ranging can and do people communicate and learn about the collective actions of others? How intense are urban-rural linkages for what purposes? What is the major constraint: poor physical infrastructure making travel and access difficult, gender differentiated cultural restrictions limiting communication by and to women, technology limitations or costs, significant language differences and barriers?

NegotiationThe above term is meant to embrace the idea that CSOs are essential and legitimate actors in the public arena. It includes ‘negotiation’ through public mobilisation and mass assertion as well as engaging in public debate, taking part in governance processes and so on. In an ideal situation, legal conditions would:

1.Define and enable arrangements where contending ideas about the public good can be advanced and negotiated.2.Ensure freedom of assembly.3.Codify rights of participation and oversight in political processes and decision-making about the public domain and the allocation of public resources.4.Acknowledge the right of citizens to exact compliance from regimes for fulfilling their mandate as well as from bureaucracies and corporations for their behaviour.

Here, evaluative questions might be: are there effective and well-known ways for civic interests to be continuously expressed, claims to be made, rights asserted and differences negotiated within the CSO community as well as with government and business? Are rules in place that reflect trust and inclusiveness? Are there known and well used institutional mechanisms or respected ‘places’ for dialogue within and between civil society and with other sectors? What is the major constraint: government aversion, deep social fractures and mistrust, lack of CSO capacity to articulate and present interests?

SummaryRecognising the caveats already discussed, the above review suggests that a wide array of constitutional and legal provisions co-determine the ‘breadth’ and ‘depth’ of CSOs in a country, as well as their autonomy and vibrancy. In addition to basic human rights, these domains embrace legislation pertaining, inter alia, to judicial construction, operation and access; recognition of associational forms and their public accountability; the political system; the media; censorship; public order; CSO income-generation; taxation; social security and labour laws; government transparency through freedom of and access to public information; national and local governance; and the legislative process itself. As can be seen in Table 1 below, a typical focus on ‘a non-profit law’ is an important but inadequate appreciation of what an enabling CSO legal framework really means.

Table 1. Summary of Legal Dimensions of an Enabling Environment

As noted previously, no country satisfies ideal conditions for CSOs. Instead, every society determines and continually adjusts the limits of and balance between them. Ways of setting limits and achieving balance range from obtaining a broad consensus to issuing and enforcing an uncontested edict. Whatever the case, answers to the type of questions cited above could be used to establish a local or country scenario from which enabling reforms can be considered.

5. CONCLUSIONS: ENHANCING LEGAL CONDITIONS FOR CSOsAt the core of the above discussion lies the issue of relations between a state and its citizens. It suggests that CSO ‘vibrancy’ emerges from historical processes that lead to complex legal configurations that – to varying degrees - recognise, value and promote CSOs as an embodiment of citizen’s collective energy. Attaining fully enabling legal configurations reflects the formation of CSOs as a right, not as a discretionary principle.

The point has been stressed that law is a necessary but not sufficient condition for CSO vibrancy. But this does not imply that legal reforms and better application of existing laws are not potentially valuable interventions on a pathway to increasing CSO vitality. A systematic appraisal of the influence of legal conditions across the domains described above would be a useful starting point. However, such an exercise must recognise the distributed nature of laws that affect CSO existence, expression and engagement. Which implies the importance of looking at the outcomes on CSOs of the interactions between different legal provisions and not expecting that reform in one statute or in its application will be adequate or fully predictable in terms of its affects.

Finally, it is important to look at the actual rules of the game that laws create through their interpretation into policies, bureaucratic practices and (transaction) costs. In other words, to examine where ‘the rubber hits the road’ in terms of the real life, as opposed to intended, legal environment that CSOs live within. Legislation is a good starting place, but rarely the end point, for attaining a vibrant CSO sector.